Legislation, Permits, Regulations

How does the law treat Mountaintop Removal?  Laws at the state and federal level regulate mountaintop removal coal mining and its environmental impacts, require varying levels of public participation, and apply varying amounts of scrutiny in the permitting process. This section will explore the governmental institutions that exert influence over mountaintop removal coal mining, the laws that regulate it, and potential changes in the law. There is great dispute as to whether or not regulations and their enforcement sufficiently safe-guard the health, safety, and well-being of communities living near mountaintop removal sites and the surrounding environment, so both law as written and law as applied will be explored in this section.

 

National Environmental Protection Act

 

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The National Environmental Protection Act was passed in 1970 in order to monitor the environmental impact of federal agency actions and decisions. The act created a Council on Environmental Policy, required environmental impact statements and a process to solicit public input to include environmental concerns in federal agency decision making.

 

In the case of mountaintop removal and valley fill permitting, coal companies prepare and submit an Environmental Impact Statements (EIS) for each permit. In theory, these statements assess the potential impact of mining on the environment. The Army Corps of Engineers is empowered to issue Finding of no Significant Impact (FONSI) documents which supersede any concerns that may be present in the EIS by explaining why the Corps has concluded that there are no significant environmental impacts resulting from the granting of a permit. In the past, this power has been used to streamline the permitting process, despite the obvious impacts of mountaintop removal mining.

 

Instances exist where permits were granted despite inadequate EIS statements, and then challenged in court. For example, as part of a settlement agreement from the Bragg vs Robertson (Civ. No. 2:98-0636 (S.D. W.V.) case ,the EPA, the Corps, the U.S. Interior Department's Fish & Wildlife Service and Office of Surface Mining, and the West Virginia Department of Environmental Protection (DEP), prepared an environmental impact statement (final EIS) looking at the impacts of mountaintop mining and valley fills.   

 

More information is available in the Citizen's Guide to NEPA.
 

 

 

Surface Mining Control and Reclamation Act (SMCRA)

On February 16th, 1972, a coal slurry impoundment ruptured in Buffalo Creek, W.Va. The rushing tidal wave of sludge killed over 120 people and left many thousands homeless, yet several days before the rupture a federal inspector had found the dam site in "satisfactory" safety. The dangers of strip mining had long been of concern to coalfield residents.

 

The increased mechanization of strip mining that left many union mining jobs and the encroaching growth of strip mines combined to spark a powerful grassroots movement to abolish strip mining. The tragedy of the Buffalo Creek Flood stoked these flames and five years later, in response to the growing political pressure from Southern Democrats and coalfield residents, Jimmy Carter signed the Surface Mining Control and Reclamation Act in 1977.

 

It did not abolish strip mining, instead stating that its primary goal was to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations."  To do so, it created the Office of Surface Mining in the Department of the Interior and the regulations for them to enforce. The surface mines constructed before SMCRA are often referred to as "pre-law," while those after are called "post-law."

 

The SMCRA permit is the whole mining plan, top to bottom, including the blasting plan.  The DEP administers SMCRA permits but, unlike the NPDES permits, the Interior Department's Office of Surface Mining and Reclamation maintains oversight.  The DEP's Office of Explosives and Blasting also approves the blasting plan within the SMCRA permit.  A typical Environmental Impact Statement is also required here, "but they usually don't get filled out," Louis-Rosenberg said. 

 

SMCRA requires that "all surface coal mining operations back-fill, compact... and grade in order to restore the approximate original contour of the land with all high-walls, spoil piles and depressions eliminated." However, the WVDEP regularly grants exceptions to the Approximate Original Contour (AOC) rule.  This despite one of the act's goals: to "assure that surface mining operations are not conducted where reclamation as required by this Act is not feasible."

Since 1977, the following language was added to SMCRA, weakening this goal:

This clause allows coal companies to not restore a site's AOC, as long as it is put to a better economic or social use than it was before. Under this clause, prisons and a golf course have been constructed on mountaintop removal sites.  One such prison has earned the name Sink-Sink because it does just that.  The mountains, and the ecosystems they support, have an intrinsic cultural value to the residents of the Coal River Valley that cannot be measured in monetary terms, and yet under SMCRA the economic value of the land supersedes all others.

 

 

Mining Safety and Health Administration Permit

 

The federal Mining Safety and Health Administration oversees the regulatory structure of the mines.  All mines have to pass muster on the safety of operating the mine and this is all detailed in the MSHA plan the coal companies must file.  Part of MSHA's responsibility is approval and inspection of coal slurry dams.  MSHA focuses on the safety aspect of the structures, not their environmental impacts.